Families of PS752 victims could go after Ukraine airline or Iran in bid for compensation

The family members of those killed on Flight PS752 are likely entitled to monetary compensation under international aviation law, lawyers say, but could also achieve it through a comprehensive settlement with the government of Iran.

Iran’s Revolutionary Guard shot down the Boeing 737-800 using surface-to-air missiles, Iranian leaders conceded on Saturday, killing all 176 passengers and crew on board. Fifty-seven of those who died were Canadian citizens, while dozens of others were travelling to Canada.

Prime Minister Justin Trudeau said on Saturday that he expects Iran to take full responsibility for the downing of the jetliner and indicated that he would press Iran to provide compensation on behalf of the people who lost their lives.

“A full and complete investigation must be conducted,” Trudeau said. “Families are seeking justice and accountability and they deserve closure.”

Lawyers say there are three main avenues for family members to achieve financial compensation: through civil action, through the International Court of Justice, or through international diplomacy.

Civil action

Vincent Genova, a Toronto lawyer who practices personal injury and aviation law, said the families of Canadian citizens and those with ties to Canada could most likely launch a civil action in a Canadian court against Ukraine International Airlines, the operator of Flight PS752.

Genova said family members can make the case that the airliner was negligent and should have cancelled the flight due to the security situation in the region.

“I think most people are quite shocked that the plane was allowed to take off in what could have been a war zone and certainly a dangerous time given the the political climate in that region,” said Genova.

Just hours before the flight took off, Iran had launched a missile attack against two military bases in Iraq housing U.S. and Canadian soldiers, in retaliation for the U.S. assassination of Gen. Qassem Solemeini, who was head of the Iranian Revolutionary Guards’ Quds Force.

On Saturday, the Iranian military said it mistook the plane for a “hostile target” and Iranian President Hassan Rouhani blamed “human error.”

Whether or not a Canadian court has jurisdiction over a case like this depends on the passenger’s ticket and flight itinerary, according to Joe Fiorante, a Vancouver lawyer who specializes aviation law.

Fiorante said people travelling to Canada on a one-way ticket or returning to Canada on a round-trip ticket would be covered by the Montreal Convention, an international treaty to which Canada and Ukraine are signatories, but Iran is not.

Under the Convention, airlines are responsible for compensating victims’ families in the case of an “accident,” which is defined broadly and would include a missile strike, Fiorante said.

Families are entitled to provable damages up to an initial threshold of $232,000, without having to prove fault.

Compensation covers, at a minimum, things like funeral expenses and lost belongings, but can be expanded to include loss of future income and other damages related to the loss of a loved one.

Any final amount would be determined in the court where the complaint is filed, Fiorante said.

“Unfortunately, like all other civil litigation that these cases can take years to resolve,” Fiorante said. “There’ll be some very complicated questions in this case as to whether Ukraine Airlines has a defence to the claim based on the events leading to the to the crash,” he said.

International court

A second possible avenue of compensation for victims’ families is through the International Court of Justice.

The government of Canada could bring a claim in that court against the government of Iran for reparations, Fiorante said.

In 1989, the Iranian government made such a claim against the United States for shooting down Iran Air Flight 655. That flight was on its way from Tehran to Dubai when two surface-to-air missiles launched from the U.S. Navy cruiser USS Vincennes brought it down over Iranian territorial waters.

All 290 people on board were killed.

The international court case dragged on for years, but eventually the U.S. government eventually agreed to pay $131 million in compensation to Iran and the families of the victims.

“The lawyers will want much more information about all of the circumstances pertaining to this crash but that is an avenue that is certainly open to the government of Canada,” FIorante said.

Diplomacy

Ultimately, the solution to the issue may be worked out through international diplomacy.

The Iranian government could come to an agreement with other governments involved, including Canada’s, that would include compensation for the families of victims.

Genova, the Toronto lawyer, used the example of the Pan Am Flight 103, which exploded over Lockerbie, Scotland on Dec. 21, 1988, killing 270 people.

The investigation into that crash found that a Libyan intelligence agent guilty of planning the attack and the U.N. imposed a series of sanctions on Libya.

Years later, the Libyan government accepted responsibility as part of a broader deal that saw international sanctions lifted.

“A lot of that came about because of geopolitical pressure,” said Genova. “I think there will be similar actions against the Iranian government until they make good on their admission of fault.”

There are already signs that things are moving in this way.

Foreign Affairs Minister François-Philippe Champagne has up an international working group of countries whose citizens perished on the plane. Members include representatives from the United Kingdom, Sweden, Canada and Afghanistan. The purpose of the group is to coordinate a response and to share information about the investigation.

Members of the working group held a phone call yesterday where they all discussed the need for justice, including compensation for victims, according to a readout provided by Champagne’s office.

CBC